Jan. 21
MISSOURI:
U.S. Supreme Court faults St. Louis lawyers in death penalty ruling
The U.S. Supreme Court on Tuesday reversed 2 lower courts and said that a
triple murderer on Missouri's death row, whose execution last fall was delayed,
should be granted a replacement of the 2 St. Louis lawyers on his case.
The ruling also means convicted killer Mark Christeson can argue that he should
be allowed to appeal his case in federal court, an avenue that was blocked when
the lawyers missed a deadline.
The ruling says Christeson's attorneys, Eric Butts and Phil Horwitz, admitted
failing to meet with Christeson until 6 weeks after his federal appeal was due.
It also says there was no evidence they had communicated with him before that.
The lawyers filed the appeal 117 days late and subsequently blamed it on a
miscalculation.
The high court said both attorneys now have a "conflict of interest" in arguing
that the deadline should be waived because of their mistake.
"Advancing such a claim would have required Horwitz and Butts to denigrate
their own performance. Counsel cannot reasonably be expected to make such an
argument, which threatens their professional reputation and livelihood," reads
the unsigned 7-2 opinion.
Justices Samuel Alito and Clarence Thomas said they would not reopen the case
without "briefing and argument" to show whether the lawyers' conduct was merely
an error or "the kind of abandonment" that needs intervention.
Tuesday's ruling notes that Christeson still must demonstrate "extraordinary
circumstances" to justify the reopening of the case.
Horwitz and Butts did not return phone calls and emails seeking comment
Tuesday.
Christeson was too poor to afford counsel. He was represented at trial by the
state public defender's office. A federal judge in western Missouri appointed
Horwitz and Butts, who are paid for their work, in 2004 to handle the federal
appeals after state court appeals were exhausted.
Christeson was convicted in 1999 and sentenced to death for raping Susan Brouk,
36, and murdering her and her 2 children in 1998, near Vichy, Mo.
Christeson, then 18, and his cousin, Jesse Carter, then 17, wanted to steal
Brouk's SUV and drive to California, court records show. The documents say
Christeson raped Brouk, and that she recognized Carter.
Officials said the men drove the victims to a nearby pond, where Christeson cut
Brouk's throat, then cut the throat of her son, Kyle, 9, and held him under the
water. Christeson then suffocated Brouk's son Adrian, 12, and threw Brouk into
the water, where she drowned.
Tuesday's ruling represents a victory for St. Louis University Law School
adjunct professors and Death Penalty Clinic students, who began looking into
the case last year at the request of Butts and Horwitz.
1 of the SLU lawyers, Joseph Perkovich, said his team met with Christeson and
realized the condemned man was unaware his appeals had been exhausted.
After Butts and Horwitz refused to turn over their files, Perkovich said, he
and his colleagues began attempting to oust them, to make the argument in court
that Christeson was not represented effectively.
Perkovich and his colleagues from the "public interest, nonprofit" law firm
Phillips Black have argued Christeson has "severe cognitive disabilities"
making him totally reliant on his lawyers.
Butts and Horwitz fought to remain on the case, and lower courts, including the
8th Circuit U.S. Court of Appeals in St. Louis, agreed multiple times.
U.S. District Judge Dean Whipple wrote in October that the two lawyers had
appeared on behalf of Christeson in other legal challenges to the death
penalty. He also warned of an "untenable precedent" that outside lawyers could
delay an execution "by simply waiting until the 11th hour and then 2nd-guessing
the work of appointed counsel."
But Perkovich said Butts and Horwitz had merely signed on to legal challenges
being filed by other inmates.
The SLU team helped Christeson win a stay of his execution just hours before it
was scheduled on Oct. 29.
The Missouri attorney general's office, which argued against the delay, did not
respond Tuesday to a request for comment.
Perkovich said the case was partly a product of a "beleaguered" system that
represents the poor in capital cases. He said the process was further strained
by a series of execution dates recently set by the Missouri Supreme Court.
Perkovich said he and his colleagues "have no appetite for taking down
attorneys" but were ethically bound to protect Christeson's interests.
Horwitz and Butts, who do criminal defense work here, continue to be appointed
to federal defense work. In U.S. District Court in St. Louis, it was as
recently as December for Butts and July for Horwitz.
(source: St. Louis Post-Dispatch)
*******************
The Near Death of Mark Christeson ---- He was nearly executed because his
lawyers missed a filing deadline. Now the Supreme Court has weighed in on what
should happen next.
In a case emblematic of a law that has cost scores of condemned inmates their
final appeals, the U.S. Supreme Court ruled today that in the "interests of
justice," a Missouri death row inmate whose attorneys missed a crucial filing
deadline should be entitled to new lawyers.
The ruling marks the latest development in the case of Mark Christeson, who in
October received a stay of execution mere hours before he was to die by lethal
injection.
Christeson's is 1 of at least 80 capital cases where attorneys have missed a
1-year deadline established by Congress in 1996 for filing federal habeas
corpus petitions, according to an investigation published by The Marshall
Project and The Washington Post in November. Because of the late filings, most
of those inmates lost access to what is arguably the country's most critical
safeguard in death-penalty cases.
Christeson was sentenced to death for 3 murders committed in south-central
Missouri in 1998. He was convicted of raping 36-year-old Susan Brouk, then
cutting her throat. He was also convicted of killing Brouk's 12-year-old
daughter and 9-year-old son.
After the Missouri Supreme Court denied Christeson's 1st 2 appeals, a U.S.
District Court judge in 2004 appointed 2 St. Louis-area attorneys, Eric Butts
and Philip Horwitz, to represent Christeson in preparing his final appeal in
federal court. Under the Antiterrorism and Effective Death Penalty Act (or
AEDPA), which was signed by President Clinton to streamline capital appeals,
Christeson's filing deadline was April 10, 2005.
But Butts and Horwitz didn't meet with Christeson until more than 6 weeks after
the deadline. When they filed the petition, it was 117 days late. The 2
attorneys, who did not respond to interview requests, attributed their
miscalculation to a lack of clarity in court rulings in how to determine the
deadline, according to court records.
Under a previous Supreme Court ruling, a missed filing deadline can be forgiven
only in "serious instances of attorney misconduct." But the U.S. District Court
and a federal court of appeals refused to substitute in attorneys to make that
argument for Christeson, leaving Butts and Horwitz with what the U.S. Supreme
Court today called an "obvious conflict of interest."
"Advancing such a claim would have required Horwitz and Butts to denigrate
their own performance," the Supreme Court wrote. "Counsel cannot reasonably be
expected to make such an argument, which threatens their professional
reputation and livelihood."
The court reached its decision without briefing or oral argument, which is
typically done when justices believe that a legal principle is sufficiently
settled, making such steps unnecessary. Justices Samuel Alito and Clarence
Thomas dissented, saying the court should have asked for the arguments to be
more fully developed before acting.
Joseph Perkovich, a New York City attorney who had asked to be substituted in
as counsel for Christeson, said today that AEDPA makes it "extremely onerous"
for condemned inmates to overcome procedural obstacles. "So it's a red-letter
day for us to get a positive result from any court, much less the highest court
in the land," he said.
2 other attorneys - Jennifer Merrigan of Philadelphia and John Mills of San
Francisco - have been working with Perkovich to argue that Christeson is
entitled to new attorneys free of any conflict of interest. All have been
working on the case without compensation.
Christeson's request to have his petition reviewed despite the missed deadline
received support from more than a dozen former state and federal judges, who
filed a brief on Christeson's behalf with the U.S. Supreme Court.
"Cases, including this one, are falling through the cracks of the system," they
wrote. "And when the stakes are this high, such failures unacceptably threaten
the very legitimacy of the judicial process."
(source: The Marshall Project)
**************************
Missouri group calls for moratorium on death penalty, next execution scheduled
for next week
Opponents of the state's death penalty say Missouri is engaged in a rush to
execution and should place a moratorium on them while the death penalty is
studied.
Staci Pratt is the state coordinator for Missourians for Alternatives to the
Death Penalty. She says the scheduled execution of Marcellus Williams on Jan.
28 lends increased urgency to legislation targeting the state's death penalty
policies and procedures.
Democratic Rep. John Rizzo, of Kansas City, has filed a bill to create a task
force to evaluate the death penalty and halt executions until at least January
2018.
Missouri executed 10 men last year.
Bills also have been filed this year to evaluate the costs of carrying out the
death penalty, abolish it and require a review of every case.
(source: Associated Press)
ARIZONA:
Arias jury hears statements from scared witnesses
The Jodi Arias trial continued with the defense's expert witness describing
Arias's relationship with Travis Alexander and statements from witnesses who
claim they're too scared to testify in open court.
Dr. Robert Geffner took the stand again Tuesday morning. Geffner's testimony
had been on hold from previous trial dates while the defense team called
witnesses out of order.
Geffner testified he interviewed Arias and read transcripts of emails, chats
and text messages that she and Alexander sent, both to each other and to other
people.
Those text messages, at times explicit, show Alexander was communicating with
several women at the same time as Arias. The defense claims Arias was a victim
of emotional and physical abuse as a way to mitigate her punishment.
Geffner testified Arias was a victim of abuse based on Alexander's
relationships with other women. Geffner told the jury Alexander engaged in a
pattern of using women for sex.
Defense attorneys also attempted to admit statements by witnesses who were
reportedly afraid to testify in open court. They claim they were harassed after
the 1st trial and were afraid of the repercussions if they were seen to be
supporting Arias."They're in love with him," Geffner said. "They're interacting
with him without necessarily knowing the others are."
Prosecutor Juan Martinez made a lengthy objection in which he went through the
statements paragraph by paragraph, asking for certain statements to be
excluded.
Some of those statements dealt with the witness's opinion of the fairness of
the guilt phase of the trial, or of Jodi Arias's innocence.
After a lengthy sidebar and deliberation, parts of those statements were
admitted.
Arias was convicted of stabbing, shooting and slashing the throat of her
boyfriend, Travis Alexander, in 2008. She stabbed him 27 times and shot him
once in the head.
After a jury was unable to reach a decision about whether she should receive
life in prison or the death penalty, a new jury was impaneled to retry the
sentencing phase of the trial. That retrial has now lasted 4 months.
(source: The Arizona Republic)
CALIFORNIA:
Brown appointees to Supreme Court renew hopes in death penalty cases
On the day justices Mariano-Florentino Cuellar and Leondra R. Kruger were sworn
in this month, the California Supreme Court issued a 4-3 ruling leaving in
place a death sentence for a man with a long criminal record..
With Gov. Jerry Brown's newest appointees now on the court, the death row
inmate plans to ask the justices to reconsider. If both new justices join the
dissenters, the ruling could be overturned before becoming final.
"I am never optimistic," said Cliff Gardner, the lawyer for the condemned man.
"On the other hand, it was a 4-3 decision, and the court is changing."
Past turnover on the state's highest court has led to some immediate, dramatic
reversals. In the long run, the new composition could affect an array of cases,
including medical malpractice and medical marijuana, but probably will be most
felt in the criminal arena. The court, long dominated by former prosecutors,
has affirmed about 90% of the death sentences it has reviewed. Criminal
defendants rarely win.
"Brown certainly seems to have reshaped this court in a fairly dramatic way,"
said Jan Stiglitz, a co-founder of the California Innocence Project, which is
representing a client in a case before the newly constituted court.
Instead of appointing former prosecutors, Stiglitz said, "Brown has brought in
not just people from the outside but people who don't have this background that
sort of predisposes them to be cynical in criminal cases."
But little experience in criminal law also can be a handicap, critics said.
Former prosecutors have "stared evil in the face and know what it looks like,"
said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation,
which supports the death penalty. None of the Brown appointees have had prior
judicial experience.
"The academic view of criminal law is what produces bad decisions," Scheidegger
said.
Cuellar, the court's only Latino, is a former Stanford law professor. Kruger,
the only African American justice, has worked primarily in Washington, where
she represented the federal government in cases before the U.S. Supreme Court.
Justice Goodwin Liu, Brown's first appointee last term, was a law professor at
UC Berkeley.
Cuellar and Kruger both asked questions and followed arguments closely when
they attended their first hearing on the court this month. Cuellar was animated
and eager, Kruger soft-spoken and serious.
Legal analysts expect the Brown justices may form a new majority with Justice
Kathryn Mickle Werdegar, a moderate to liberal Republican appointee. Unlike the
other Republican appointees, she was never a prosecutor. She worked for the
federal government on civil rights matters and as staff attorney on appellate
courts.
Werdegar was among the dissenters in the Jan. 5 death penalty ruling, which is
technically still pending. Court decisions generally do not become final for 30
days, and the losing side may ask for reconsideration. Such requests are
routinely denied - except in times of court turnover.
"I would not be surprised if they decide to reconsider" the death penalty case,
Santa Clara University School of Law professor Gerald Uelmen said. "And I base
that on the precedent. It has happened before."
When new justices were added to the court in 1996, a 4-3 ruling that upheld a
state law requiring minors to obtain a parent's permission for an abortion was
not yet legally final. The newly constituted court decided to rehear the case.
1 of the new justices joined the 3 dissenters, and the abortion law was struck
down.
When conservatives replaced liberals after an election that ousted former Chief
Justice Rose Bird and two colleagues, the new majority decided to reconsider a
death penalty sentence the Bird court had just overturned. The conservatives
issued a new ruling upholding the death sentence.
Courts are loathe to take such actions because "it highlights all too much how
the content of the law may be determined by the membership of the court," UC
Davis School of Law professor Vikram Amar said.
"We like to believe the law is this thing that exists independently of
personality," Amar said. "And if courts rapidly changed course in a case that
was just decided, it says to the public that it matters who is on the court."
And of course it does matter, he acknowledged.
"We change the meaning of law over time by changing the membership of courts,"
Amar said. "That is a reality, but that reality exists alongside this fiction
that law is this objective thing."
In the 4-3 ruling Jan. 5, the majority of the California Supreme Court agreed
to uphold the death sentence of Gary Lee Grimes, a Shasta County man who
participated in a 1995 home invasion that resulted in the killing of Betty
Bone, 98.
An accomplice who committed suicide had said he killed Bone - and only his DNA
was found on a weapon. Regardless of who actually killed her, Grimes was
legally subject to the death penalty.
The jury found him guilty. During a separate proceeding to decide whether
Grimes should be sentenced to death or life without parole, the trial judge
excluded testimony that would have shored up evidence that Grimes was not the
actual killer.
Chief Justice Tani Cantil-Sakauye, writing for the majority, said the excluded
evidence would not have changed the jury's mind about the death sentence.
"We conclude that the exclusion of ... statements regarding defendant's lack of
participation in the killing was harmless beyond a reasonable doubt,"
Cantil-Sakauye wrote.
Werdegar, Liu and another justice assigned temporarily to fill a court vacancy
said the excluded testimony should have been permitted.
The 3 justices would have upheld the guilty verdict but overturned the death
sentence. The dissenters said testimony that Grimes did not perform the killing
might have swayed the jury to spare his life.
Liu, until this month the only Democratic appointee on the court, may finally
have enough votes to change the outcome in other cases as well.
He has expressed concern in minority opinions about the court's readiness to
uphold verdicts in the face of racial bias in jury selection and to overlook
legal errors as harmless.
Liu "probably is looking to build a consensus and become a leader of a working
majority," UC Davis' Amar said.
That could come quickly in another case as well.
Liu wrote a dissent in a 4-3 decision in 2012 that upheld the murder verdict
against William Richards, a San Bernardino man convicted of killing his wife,
Pamela, in 1993. Richards, 65, was tried three times.
Juries were hung in the first 2 trials. In the 3rd, a dental expert testified
that a lesion on the body was a bite mark that matched Richards' unusual tooth
pattern. The jury returned a guilty verdict. The expert later recanted, saying
he had been mistaken.
In response to the case, the Legislature passed a bill that said discredited
forensic testimony amounts to false evidence and is grounds for a new trial.
The California Innocence Project has asked the California Supreme Court to
consider the case again in light of the new law.
2 of the 4 justices who voted to uphold Richards' conviction are no longer on
the court.
"It is our hope that the California Supreme Court is going to take this very
seriously, and the other justices are going to see that Justice Liu's minority
opinion is the one that should carry the day," said Alexander Simpson,
associate director of the innocence group.
(source: Los Angeles Times)
USA:
The U.S. needs a more humane death penalty
With the execution of Charles Warner on Thursday, Oklahoma carried out its 1st
execution in over 8 months. This delay came after the botched April execution
of Clayton Lockett. After several attempts to find a usable vein to insert the
IV, the physician finally located one in the groin area. The execution went
wrong when it was discovered that Lockett's vein had exploded and that he was
still conscious. This led to Lockett writhing in pain before finally dying of a
heart attack 43 minutes after the initial injection. These 2 executions
initially sparked debate over the use of capital punishment, but the real
debate should focus on the method of execution.
32 states still use the death penalty, and all 32 of them use lethal injection
as their mode of execution.
Until recently, most states used a 3-injection method: the 1st used for general
anesthesia, the 2nd being a muscle relaxer and the final drug stopping the
heart. The recent discontinuation of this method came about when major
pharmaceutical companies stopped selling the drugs needed to carry out
executions.
To counteract this shortage, many states have had to turn to other
less-regulated pharmaceutical companies. This turn has led to the emergence of
several variations of one and two drug lethal injection methods. Many states,
including Oklahoma, have also refused to disclose the cocktails being used in
lethal injections. All of this has led to several botched executions and many
court cases.
According to one Amherst study, 3 % of all executions in the U.S. have been
botched in some way. While this percentage is relatively low - considering the
extreme pain one endures during a botched execution - that number is way too
high.
In 2014 alone, there were 3 major botched executions including Ohio man Dennis
McGuire, previously mentioned Oklahoman Clayton Lockett and local Arizonan
Joseph R. Wood. According to witness at the Ohio execution, McGuire "gasped for
air" for over 25 minutes before dying, all while making "choking sounds."
In July, Joseph R. Wood was executed at Florence State Prison in Arizona. The
execution lasted 1 hour and 40 minutes. According to eye witnesses, Wood gasped
for air for a majority of the duration of the execution, while state officials
claim that he was simply snoring. All 3 of these cases clearly demonstrate how
terribly wrong lethal injection can go.
With the increased number of botched executions, the question remains on how to
humanely execute prisoners. Ironically enough the answer may come from a
convicted murderer. During the 1990s, euthanasia activist Jack Kevorkian
carried out 130 assisted suicides with the use of carbon monoxide. While the
practice of assisted suicide remains a hotly debated subject, Kevorkian's
long-time assistant firmly believes that carbon monoxide might be the most
humane way of executing prisoners. Assistant Neal Nicol states that their
method is "an extremely painless way of passing" and that "there are no
twitches, movements, or signs of discomfort at all." While the idea of using
Kevorkian's method may seem unethical, if there is any chance that it may help
people pass more painlessly, the method should be explored further.
While the death of Clayton Lockett has rightly ignited the debate over the
death penalty, the honest truth is that the U.S. will continue to execute
prisoners for the foreseeable future. Lawyers and prisoners will continue to
question the constitutionality of the death penalty and courts will continue to
uphold the previous rulings. The case that should be made instead is that the
current form of lethal injection is performed under less-than-ideal
circumstances and should be considered a form of cruel and unusual punishment.
(source: Alec Grafil, statepress.com)
_______________________________________________
DeathPenalty mailing list
DeathPenalty@lists.washlaw.edu
http://lists.washlaw.edu/mailman/listinfo/deathpenalty
Search the Archives: http://www.mail-archive.com/deathpenalty@lists.washlaw.edu/
~~~~~~~~~~~~~~~~~~~~~~~~~~~
A free service of WashLaw
http://washlaw.edu
(785)670.1088
~~~~~~~~~~~~~~~~~~~~~~~~~~~
